Information Blocking  How Did I Become an Actor?

Information Blocking How Did I Become an Actor?

While ONC defined Actors ashealth care providers, health IT developers of certified health IT and health information exchanges or networksin the Final Rule and published guidance on theirwebsite, there is still uncertainty as to whom the Information Blocking Rules apply. The confusion may emanate from the lack of familiarity some health care providers and health IT developers have as never having been regulated or overseen by the ONC. There also appears to be overlap between what the ONC Information Blocking Rules protect against and what and how the Office for Civil Rights protects under the HIPAA Privacy Rule. Furthermore, providers and payers are typically regulated and overseen by CMS, however, CMS has not addressed any of the potential dis-incentives that providers would be subject to for Information Blocking violations and payers have never been required to use certified electronic health records.It is understandable that the Information Blocking prohibitions would apply to a health IT developer that develops or offers health information technology that is certified under the ONC Certification Program. In the Rules, ONC clarified that the Information Blocking prohibitions apply to a health IT developer as long as the developer has one or more health IT Modules certified under the ONC Health IT Certification Program at the time it engages in a practice that is the subject of an information blocking claim. However, ONC carved out an exception for health care providers that have developed their own health IT for its own use.When ONC defined health care provider based on the definition provided under the Public Health Services Act (42 U.S.C. 300jj) (PHSA definition) it included a significant number of providers that were never before regulated by the ONC. Many of the types of health care providers that were swept into the definition of Actor and subject to the Information Blocking provisions were not included in the incentive programs that made funding available for the purchase of certified electronic health records (e.g., ambulatory surgical centers, long-term care facilities and therapists), there arent quality payment incentive programs for them to participate in and some dont use certified EHRs. Health care providers should be aware that in addition to the guidance ONC published clarifying that Information Blocking applies to any health care provider that meet the definition under the PHSA regardless of whether any of the health IT the provider uses is certified under the ONC Health IT Certification Program, the catch-all clause at the end of the PHSA definition allows any other category of health care facility, entity, practitioner, or clinician determined appropriate by the HHS Secretary to be swept into the definition of Actor.In the Final Rule, ONC combined two categories of Actors, health information exchange and health information networks and adopted one functional definition for both. A health information network or exchange refers to an entity that connects and exercises control over the technologies and services that enable the exchange of information between and among more than two other unaffiliated entities for treatment, payment or health care operations. Considering all the health IT developers, cloud service providers and data aggregators that are offering services to support Interoperability and communication to support health e-commerce, including care and benefit coordination, patient engagement and advancing social determinants of health to achieve care equality, there are a myriad of entities that are connecting multiple provider and/or payer organizations to coordinate the care or benefits of patients. These entities could unwittingly be performing the functions described in the definition of health information exchange or network without even knowing that they are considered Actors under the Information Blocking Rules.2021 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume XI, Number 173 PRINTER-FRIENDLY EMAIL THIS ARTICLE DOWNLOAD PDF REPRINTS & PERMISSIONSAdvertisementAdvertisementAdvertisementTRENDING LEGAL ANALYSISCOVID-19 Variants: The Game of the NameByWomble Bond Dickinson (US) LLPNebraska District Court Holds That GIL 24-19-1 is Not Afforded DeferenceByMcDermott Will & EmeryThe Hits Keep Coming: NCAA Loses Another Name, Image, and Likeness Court DecisionByJackson Lewis P.C.Immigration Weekly Round-Up: NJ State Assembly Votes to Ban ICE Detention; Immigration Benefits No Longer Denied for Minor Application Errors; Children Face Harsh Conditions in Immigration DetentionByNorris McLaughlin P.A.9th Circuit Revives Lawsuit Challenging One of the Board of Directors Diversity StatutesByJackson Lewis P.C.Ohio Supreme Court Rules that School Employees Must Undergo Training in Order to Carry Firearms on School GroundsByRoetzel & Andress LPA AdvertisementAdvertisementAdvertisement ABOUT THIS AUTHORKaren MandelbaumSenior CounselKaren Mandelbaumis a Senior Counsel in the Health Care and Life Sciences practice, in the Washington, DC, office of Epstein Becker Green. She has deep experience in all aspects of data privacy and protection due to her work as a privacy and security official at the Centers for Medicare & Medicaid Services (CMS), and in the private sector.Ms. Mandelbaum:Advises clients on all aspects of federal and state privacy and consumer data protection laws and regulations, including, HIPAA, HITECH, and 42 CFR Part 2Helpsdesignand developeffective data governance…kmandelbaum@ebglaw.com202-861-5322www.ebglaw.comPatricia M. WagnerMemberPATRICIA M. WAGNER is a Member of the Firm in the Health Care and Life Sciences and Litigation practices, in the firm’s Washington, DC, office. In 2014, Ms. Wagner was selected to the Washington DC Super Lawyers list in the area of Health Care.Ms. Wagner’s experience includes the following:Advising clients on a variety of matters related to federal and state antitrust issuesRepresenting clients in antitrust matters in front of the Federal Trade Commission and the United States Department of…pwagner@ebglaw.com202-861-4182www.ebglaw.com/patricia-m-wagner/AdvertisementAdvertisement ANTITRUST LAWBANKRUPTCY & RESTRUCTURINGBIOTECH, FOOD, & DRUGBUSINESS OF LAWELECTION & LEGISLATIVECONSTRUCTION & REAL ESTATEENVIRONMENTAL & ENERGYFAMILY, ESTATES & TRUSTSFINANCIAL, SECURITIES & BANKINGGLOBALHEALTH CARE LAWIMMIGRATIONINTELLECTUAL PROPERTY LAWINSURANCELABOR & EMPLOYMENTLITIGATIONCYBERSECURITY MEDIA & FCCPUBLIC SERVICES, INFRASTRUCTURE, TRANSPORTATIONTAXWHITE COLLAR CRIME & CONSUMER RIGHTSLAW STUDENT WRITING COMPETITION SIGN UP FOR NLR BULLETINS TERMS OF USE PRIVACY POLICY FAQSLegal DisclaimerYou are responsible for reading, understanding and agreeing to the National Law Review’s (NLRs) and the National Law Forum LLC’s Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free to use, no-log in database of legal and business articles.The content and links on www.NatLawReview.comare intended for general information purposes only. Any legal analysis, legislative updates or other content and links should not be construed as legal or professional advice or a substitute for such advice. No attorney-client or confidential relationship is formed by the transmission of information between you and the National Law Review website or any of the law firms, attorneys or other professionals or organizations who include content on the National Law Review website.If you require legal or professional advice, kindly contact an attorney or other suitable professional advisor. Some states have laws and ethical rules regarding solicitation and advertisement practices by attorneys and/or other professionals.The National Law Review is not a law firm nor is www.NatLawReview.com intended to be a referral service for attorneys and/or other professionals. The NLR does not wish, nor does it intend, to solicit the business of anyone or to refer anyone to an attorney or other professional. NLR does not answer legal questions nor will we refer you to an attorney or other professional if you request such information from us.Under certain state laws the following statements may be required on this website and we have included them in order to be in full compliance with these rules. The choice of a lawyer or other professional is an important decision and should not be based solely upon advertisements. Attorney Advertising Notice: Prior results do not guarantee a similar outcome. Statement in compliance with Texas Rules of Professional Conduct. Unless otherwise noted, attorneys are not certified by the Texas Board of Legal Specialization, nor can NLR attest to the accuracy of any notation of Legal Specialization or other Professional Credentials.The National Law Review - National Law Forum LLC 4700 Gilbert Ave. Suite 47 #230 Western Springs, IL 60558 Telephone (708) 357-3317 ortollfree(877)357-3317. If you would ike to contact us via email please click here.Copyright 2021 National Law Forum, LLCShareThis Copy and Paste

Read on natlawreview.com


Related Article